St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1887-06-13

-S!VsUO VI WHICH, or Hucn part tnere0T as
snail be needed, shall be applied 10 the
necessary expenses of selecting sites for
proper parks, and paying the necessary
expenses Of devising q system OF parks.
which the Council should pass In ease IL
desires reports from the Board, before
1t issues the balance of the bonds.
.. y. CULLEN, Chairman.
The following is the opinion OF Messrs.
Otis and Cornish referred to in the fore
going:
To Committee of Ways and Means of
the Common Council of the City of st.
Paul:
GENTLEMEN: Having been requested
by you to examine and report upon the
rights of the Common Council and the
city under the act of the Legislature
entitled San act to provide for the crea-
ton and organization OF Board Of Park
commissioners in and for the City OF
81. Paul" ETC., approved February %,
1887, with reference to the demand made
upon the Common Council for the issu-
ance of the bonds of the city in the
amount of 1926, 200, under section of
that act, we shall endeavor to make a
candid presentation of the law appliea-
BILE to the facts, as we find it laid down
by the recognized authorities. We
have been aided by knowl-
edge of the views Of the Park
their able counsel, Mr.. BigelOw. And
of the questions which present them
selves, we will firstsconSider the posi-
ton taken by him, namely: That the
language of section z, though permits
sive in form, is in fact peremptOry, and
that 1t is obligatory upon the Common
Council to issue the bonds without any
exercise of its discretion.
1t is provided by the act that the
board shall consist of seven persons,
who, except as to the first Board, shall
be appointed by the Mayor of the city.
The first Board consists of seven per-
sons named in the act, and the term of
Office for the first four is fixed
at one year from March /, 1887,
and for the others two years from
said date, and all until their successors
have been appointed and qualified.
This Board is given the control and
government of parks and parkways in
the City of st. Paul, and the authority
of the Common Council over and in re-
and it is given authority to devise Sys-
TEN of parks and parkways within the
city, and to obtain title to lands for that
purpose, and to institute proceedings
through the Board of Public Works of
the city for the condemnation of lands
and the laying of assessments therefor
to the amount OF fifty per cent. of the
cost, and to pay the remainder out of
the park fund. 1t is provided that the
Board may employ servants, presumably
for the furtherance of the object of
creating and maintaining parks, and pay
for the same out of the park funds, and
finally it is expressly provided that $685.
600 shall be expended in the improve
prOvement of Como Park.
In all this it is claimed that the con-
sent of the Common Council is not re-
quired, and that the Legislature did not
intend to leave. ANY discretion in the
Common Council as to the creation or
extent of the park fund.
The language of section Z by its terms
authorizes and empowers the Common
Council to issue and negotiate bonds of
the city in an amount not exceeding
S225, 900, for the purposes of this fund.
The rule is claimed to be that the
true construction of this language is to
make it mandatory, and not permissive.
This is the rule as laid down in the
cases cited by MI. Bigelow upon the
facts in those cases, but we believe
none of those cases are in point upon
the facts presented i'll this case.
The only rule established by those cases
is that where the rights of third persons
have become involved the courts will
the performance of that which
is permitted to protect those rights.
This is the limit to which we have
been cited, and that this is the true
limit is laid down in Rollersville VS..
Commissioners of Sandusky County, /
Ohio st. 149 Gin which the case in Hill.
is distinguished, and People VS.. Super
viSorS, AZ Ill. $50.
In some cases the courts have used
general language to the effect that such
a construction would be given where
public interests or private rights of third
persons require it.
in this case, as all that is permitted to
the exercise of the Board before the
creation of a park fund is provisional
only ahd dependent upon the
of such a fund; nor
is it claimed that contract
rights have accrued; and even if the
claim should be made as upon the con-
tract right of third person, the extent
of the right would be the limit of the
AS to what is meant by a public in
terest in the cases where the term is
used does not appear, as no such inter-
est was there relied upon.
1t is believed, however, that there is
a broad distinction between the public
interest as intended by the courts using
such language, and the interest here in
vOlved, which is one of purely local con-
Germ.
A municipal corporation has private
as well as public powers and capacities;
and the duty or power of city to pro-
its private than it's public character.
This was SO held by Judge Cooley in
Board of Park Commissioners VS.. Com
mon Council of Detroit, 2S Mich. 222S -223S,
and in the Lincoln Park case, 81 Ill. II.
The language of section must then
be given its ordinary meaning. which is
no more than that it cOnferS authority
upon the Common Council to act in it's
That this was the intention is more
from the discretion used in the
words lin an amount not exceeding"
used in this section.
In fair construction all words and
phrases must be given force and mean
ing, and this phrase clearly means that
a discretion is left as to the amount not
the full limit named; and this
discretion is left nowhere except with
the power which is to issue the bonds,
the Common Council.
If, then. it appears by the act itself
that the Common Council has a dis
erection as to the amount of bonds to be
issued, how can it be said that it has not
a discretion as to the creation of the
park fund?
Surely it cannot be urged that with
this discretion as to amount, reserved
in the Common Council, it is obligatory
upon it to issue the full limit at the re-
quest of the Park Board at the moment
of its first organization.
1t does not appear that this construc-
ton of the law would be nonsense" as
it may fairly be assumed that in franz
ing this law it was considered that the
two bodies could work in harmony, and
that they would only create debt upon
tbn nifxr m cr1alt oy, amount orI OF -,